Denial of foreign posting for disabled employee was not disability discrimination

Owen v AMEC Foster Wheeler Energy Ltd

An employer’s decision to withdraw the offer of an overseas posting to a severely disabled employee because of its medical concerns was not disability discrimination.

Background

Mr Owen worked as a chemical engineer for AMEC. He had double below knee amputations, type 2 diabetes, hypertension, kidney disease, ischaemic heart disease and morbid obesity. One of AMEC’s clients asked for Mr Owen and various other employees to be assigned to a project in Dubai. AMEC appointed an independent OH doctor to conduct a pre-assignment medical assessment. His opinion was that Mr Owen had ‘an appalling medical history and seems unwilling to improve his health’ and was ‘at high risk to need medical assistance’ while on assignment. In light of this, AMEC’s operations director decided not to allow Mr Owen to take up the assignment.

Mr Owen claimed that this amounted to direct and indirect disability discrimination and a failure to make reasonable adjustments. A tribunal, upheld by the EAT, dismissed all his claims and he appealed.

Court of Appeal decision

His appeal was dismissed.

As regards direct discrimination, the tribunal had identified the hypothetical comparator and correctly held that such a person - who was not disabled but was deemed to be at high risk - would have been treated in the same way. The Court of Appeal rejected Mr Owen’s argument, drawing on parallels with sex and race discrimination, that AMEC’s decision (despite its benign intention) not to post him to Dubai was ‘indissociable’ from his disabilities. AMEC’s reasons for acting as it did were not a proxy for his disabilities. The court observed that disability is not a simple binary concept; health is not an irrelevant factor in a person’s ability to do their job and the concept of indissociability cannot readily be translated into the disability discrimination context.

As to reasonable adjustments, the tribunal could not be criticised for its finding that AMEC’s reliance on medical advice was reasonable. AMEC had always acted on the basis of independent medical advice.

As to indirect discrimination, again the tribunal could not be criticised. In holding that a requirement to pass a medical before being assigned overseas was objectively justified, the tribunal had been entitled to rely on evidence from a doctor employed by AMEC (but who had not been involved in the medical assessment) as to the general medical risks in the United Arab Emirates.

Link to judgment: https://www.bailii.org/ew/cases/EWCA/Civ/2019/822.html

Comment

This case reminds employers that provided they have balanced up the risks to the organisation and the employee, with the effect on the employee, and where they have independent medical and other advice (in this case the general medical risks in the UAE), a tribunal is unlikely to find that such a decision is discrimination. Where it does go wrong is where businesses make an assumption, without any evidence to support that assumption.